The Supreme Court has ruled that the 2nd amendment applies to individual citizens. But how does that affect you? How does it affect the lives of your and your children? Who is packing a pistol? Should you be carrying one too? What you should know before you step out your front door.

If you are anti-guns, or afraid of guns, or just don't like them and don't want them in your house, then this blog is for you.(It might just change your mind)

Sunday, January 22, 2012

Police Have No Duty To Protect Individuals

by Peter Kasler

Self-Reliance For Self-Defense -- Police Protection Isn't Enough!

All our lives, especially during our younger years, we hear that the
police are there to protect us. From the very first kindergarten- class
visit of "Officer Friendly" to the very last time we saw a police car -
most of which have "To Protect and Serve" emblazoned on their doors -
we're encouraged to give ourselves over to police protection. But it
hasn't always been that way.

Before the mid-1800s, American and British citizens - even in large cities
- were expected to protect themselves and each other. Indeed, they were
legally required to pursue and attempt to apprehend criminals. The notion
of a police force in those days was abhorrent in England and America,
where liberals viewed it as a form of the dreaded "standing army."

England's first police force, in London, was not instituted until 1827.
The first such forces in America followed in New York, Boston, and
Philadelphia during the period between 1835 and 1845. They were
established only to augment citizen self-protection. It was never intended
that they act affirmatively, prior to or during criminal activity or
violence against individual citizens. Their duty was to protect society as
a whole by deterrence; i.e., by systematically patrolling, detecting and
apprehending criminals after the occurrence of crimes. There was no
thought of police displacing the citizens' right of self-protection. Nor
could they, even if it were intended.

Even if all 500,000 American police officers were assigned to patrol, they
could not protect 240 million citizens from upwards of 10 million
criminals who enjoy the luxury of deciding when and where to strike. But
we have nothing like 500,000 patrol officers; to determine how many police
are actually available for any one shift, we must divide the 500,000 by
four (three shifts per day, plus officers who have days off, are on sick
leave, etc.). The resulting number must be cut in half to account for
officers assigned to investigations, juvenile, records, laboratory,
traffic, etc., rather than patrol.
[1]

Such facts are underscored by the practical reality of today's society.
Police and Sheriff's departments are feeling the financial exigencies of
our times, and that translates directly to a reduction of services, e.g.,
even less protection. For example, one moderate day recently (September
23, 1991) the San Francisco Police Department "dropped"
[2]
157 calls to its 911 facility, and about 1,000 calls to its general
telephone number (415-553-0123). An SFPD dispatcher said that 150 dropped
911 calls, and 1,000 dropped general number calls, are about average on
any given day.
[3]

It is, therefore, a fact of law and of practical necessity that
individuals are responsible for their own personal safety, and that of
their loved ones. Police protection must be recognized for what it is:
only an auxiliary general deterrent.

Because the police have no general duty to protect individuals, judicial
remedies are not available for their failure to protect. In other words,
if someone is injured because they expected but did not receive police
protection, they cannot recover damages by suing (except in very special
cases, explained below). Despite a long history of such failed attempts,
however, many, people persist in believing the police are obligated to
protect them, attempt to recover when no protection was forthcoming, and
are emotionally demoralized when the recovery fails. Legal annals abound
with such cases.

Warren v. District of Columbia is one of the leading cases of this type.
Two women were upstairs in a townhouse when they heard their roommate, a
third woman, being attacked downstairs by intruders. They phoned the
police several times and were assured that officers were on the way. After
about 30 minutes, when their roommate's screams had stopped, they assumed
the police had finally arrived. When the two women went downstairs they
saw that in fact the police never came, but the intruders were still
there. As the Warren court graphically states in the opinion: "For the
next fourteen hours the women were held captive, raped, robbed, beaten,
forced to commit sexual acts upon each other, and made to submit to the
sexual demands of their attackers."

The three women sued the District of Columbia for failing to protect them,
but D.C.'s highest court exonerated the District and its police, saying
that it is a "fundamental principle of American law that a government and
its agents are under no general duty to provide public services, such as
police protection, to any individual citizen."
[4]
There are many similar cases with results to the same effect.
[5]
In the Warren case the injured parties sued the District of Columbia under
its own laws for failing to protect them. Most often such cases are
brought in state (or, in the case of Warren, D.C.) courts for violation of
state statutes, because federal law pertaining to these matters is even
more onerous. But when someone does sue under federal law, it is nearly
always for violation of 42 U.S.C. 1983 (often inaccurately referred to as
"the civil rights act"). Section 1983 claims are brought against
government officials for allegedly violating the injured parties' federal
statutory or Constitutional rights.

The seminal case establishing the general rule that police have no duty
under federal law to protect citizens is DeShaney v. Winnebago County
Department of Social Services.
[6]
Frequently these cases are based on an alleged "special relationship"
between the injured party and the police. In DeShaney the injured party
was a boy who was beaten and permanently injured by his father. He claimed
a special relationship existed because local officials knew he was being
abused, indeed they had "specifically proclaimed by word and deed [their]
intention to protect him against that danger,"
[7]
but failed to remove him from his father's custody.

The Court in DeShaney held that no duty arose because of a "special
relationship," concluding that Constitutional duties of care and
protection only exist as to certain individuals, such as incarcerated
prisoners, involuntarily committed mental patients and others restrained
against their will and therefore unable to protect themselves. "The
affirmative duty to protect arises not from the State's knowledge of the
individual's predicament or from its expressions of intent to help him,
but from the limitation which it has imposed on his freedom to act on his
own behalf."
[8]

About a year later, the United States Court of Appeals interpreted
DeShaney in the California case of Balistreri v. Pacifica Police
Department.
[9]
Ms. Balistreri, beaten and harassed by her estranged husband, alleged a
"special relationship" existed between her and the Pacifica Police
Department, to wit, they were duty-bound to protect her because there was
a restraining order against her husband. The Court of Appeals, however,
concluded that DeShaney limited the circumstances that would give rise to
a "special relationship" to instances of custody. Because no such custody
existed in Balistreri, the Pacifica Police had no duty to protect her, so
when they failed to do so and she was injured they were not liable. A
citizen injured because the police failed to protect her can only sue the
State or local government in federal court if one of their officials
violated a federal statutory or Constitutional right, and can only win
such a suit if a "special relationship" can be shown to have existed,
which DeShaney and its progeny make it very difficult to do. Moreover,
Zinermon v. Burch
[10]
very likely precludes Section 1983 liability for police agencies in these
types of cases if there is a potential remedy via a State tort action.

Many states, however, have specifically precluded such claims, barring
lawsuits against State or local officials for failure to protect, by
enacting statutes such as California's Government Code, Sections 821, 845,
and 846 which state, in part: "Neither a public entity or a public
employee [may be sued] for failure to provide adequate police protection
or service, failure to prevent the commission of crimes and failure to
apprehend criminals."

It is painfully clear that the police cannot be relied upon to protect us.
Thus far we've seen that they have no duty to do so. And we've also seen
that even if they did have a duty to protect us, practically- speaking
they could not fulfill it with sufficient certainty that we would want to
bet our lives on it.

Now it's time to take off the gloves, so to speak, and get down to
reality. So the police aren't duty-bound to protect us, and they can't be
expected to protect us even if they want to. Does that mean that they
won't protect us if they have the opportunity?

One of the leading cases on this point dates way back into the 1950s.
[11]
A certain Ms. Riss was being harassed by a former boyfriend, in a familiar
pattern of increasingly violent threats. She went to the police for help
many times, but was always rebuffed. Desperate because she could not get
police protection, she applied for a gun permit, but was refused that as
well. On the eve of her engagement party she and her mother went to the
police one last time pleading for protection against what they were
certain was a serious and dangerous threat. And one last time the police
refused. As she was leaving the party, her former boyfriend threw acid in
her face, blinding and permanently disfiguring her.

Her case against the City of New York for failing to protect her was, not
surprisingly, unsuccessful. The lone dissenting justice of New York's high
court wrote in his opinion: "What makes the City's position [denying any
obligation to protect the woman] particularly difficult to understand is
that, in conformity to the dictates of the law [she] did not carry any
weapon for self-defense. Thus, by a rather bitter irony she was required
to rely for protection on the City of New York which now denies all
responsibility to her."
[12]

Instances of police refusing to protect someone in grave danger, who is
urgently requesting help, are becoming disturbingly more common. In 1988,
Lisa Bianco's violently abusive husband was finally in jail for beating
and kidnapping her, after having victimized her for years. Ms. Bianco was
somewhat comforted by the facts that he was supposedly serving a
seven-year sentence, and she had been promised by the authorities that
she'd be notified well in advance of his release. Nevertheless, after
being in only a short time, he was temporarily released on an eight-hour
pass, and she wasn't notified. He went directly to her house and, in front
of their 6- and 10- year old daughters, beat Lisa Bianco to death.

In 1989, in a suburb of Los Angeles, Maria Navarro called the L. A.
County Sheriff's 911 emergency line asking for help. It was her birthday
and there was a party at her house, but her estranged husband, against
whom she had had a restraining order, said he was coming over to kill her.
She believed him, but got no sympathy from the 911 dispatcher, who said:
"What do you want us to do lady, send a car to sit outside your house?"
Less than half an hour after Maria hung up in frustration, one of her
guests called the same 911 line and informed the dispatcher that the
husband was there and had already killed Maria and one other guest. Before
the cops arrived, he had killed another.

But certainly no cop would stand by and do nothing while someone was being
violently victimized. Or would they? In Freeman v. Ferguson
[13]
a police chief directed his officers not to enforce a restraining order
against a woman's estranged husband because the man was a friend of the
chief's. The man subsequently killed the woman and her daughter. Perhaps
such a specific case is an anomaly, but more instances of general abuses
aren't at all rare.

In one such typical case
[14]
, a woman and her son were harassed, threatened and assaulted by her
estranged husband, all in violation of his probation and a restraining
order. Despite numerous requests for police protection, the police did
nothing because "the police department used an administrative
classification that resulted in police protection being fully provided to
persons abused by someone with whom the victim has no domestic
relationship, but less protection when the victim is either: 1) a woman
abused or assaulted by a spouse or boyfriend, or 2) a child abused by a
father or stepfather."
[15]

In a much more recent case,
[16]
a woman claimed she was injured because the police refused to make an
arrest following a domestic violence call. She claimed their refusal to
arrest was due to a city policy of gender- based discrimination. In that
case the U. S. District Court of Appeals for the Fifth Circuit held that
"no constitutional violation [occurred] when the most that can be said of
the police is that they stood by and did nothing..."
[17]
Do the police really harbor such indifference to the plight of certain
victims? To answer that, let's leave the somewhat aloof and dispassionate
world of legal precedent and move into the more easily understood "real
world." I can state from considerable personal experience, unequivocally,
that these things do happen. As to why they occur, I can offer only my
opinion based on that experience and on additional research into the dark
and murky areas of criminal sociopathy and police abuse.

One client of my partner's and mine had a restraining order against her
violently abusive estranged husband. He had recently beaten her so
savagely a metal plate had to be implanted in her jaw. Over and over he
violated the court order, sometimes thirty times daily. He repeatedly
threatened to kill her and those of use helping her. But the cops refused
to arrest him for violating the order, even though they'd witnessed him
doing so more than once. They danced around all over the place trying to
explain why they wouldn't enforce the order, including inventing numerous
absurd excuses about having lost her file (a common tactic in these
cases). It finally came to light that there was a departmental order to
not arrest anyone in that county for violating a protective order because
the county had recently been sued by an irate (and wealthy) domestic
violence arrestee.

In another of our cases, when Peggi and I served the man with restraining
orders (something we're often required to do because various law
enforcement agencies can't or won't do it), he threatened there and then
to kill our client. Due to the vigorous nature of the threat, we went
immediately to the police department to get it on file in case he
attempted to carry it out during the few days before the upcoming court
appearance. We spent hours filing the report, but two days later when our
client went to the police department for a copy to take to court, she was
told there was no record of her, her restraining order, her case, or our
report.

She called in a panic. Without that report it would be more difficult
securing a permanent restraining order against him. I paid an immediate
visit to the chief of that department. We discussed the situation and I
suggested various options, including dragging the officer to whom Peggi
and I had given the detailed death threat report into court to explain
under oath how it had gotten lost. In mere moments, an internal affairs
officer was assigned to investigate and, while I waited, they miraculously
produced the file and our report. I was even telephoned later and offered
an effusive apology by various members of the department.

It is true that in the real world, law enforcement authorities very often
do perpetuate the victimization. It is also true that each of us is the
only person upon whom we can absolutely rely to avoid victimization. If
our client in the last anecdote hadn't taken responsibility for her own
fate, she might never have survived the ordeal. But she had sufficient
resolve to fend for herself. Realizing the police couldn't or wouldn't
help her, she contacted us. Then, when the police tried their bureaucratic
shuffle on her, she called me. But for her determination to be a victim no
more, and to take responsibility for her own destiny, she might have
joined the countless others victimized first by criminals, then by the
very system they expect will protect them.

Remember, even if the police were obligated to protect us (which they
aren't), or even if they tried to protect us (which they often don't, a
fact brought home to millions nationwide as they watched in horror the
recent events in Los Angeles), most often there wouldn't be time enough
for them to do it. It's about time that we came to grips with that, and
resolved never to abdicate responsibility for our personal safety, and
that of our loved ones, to anyone else.

True Hoplophobia, or the fear of guns, is a mental illness which, like other true phobias, incapacitates its victims with anxiety, shortness of breath, inability to think clearly and rationally. Obviously, we who are fearful of guns and their destructive power don't have true Hoplophobia. But we are still afraid. Why?

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PRO GUN QUOTES

Gun control:The theory that a woman found dead in an alley, raped and strangled with her panty hose, is somehow morally superior to a woman explaining to police how her attacker got that fatal bullet wound. - L. Neil Smith

Gun control has not worked in D.C. The only people who have guns are criminals. We have the strictest gun laws in the nation and one of the highest murder rates. It's quicker to pull your Smith and Wesson than to dial 911 if you're being robbed. - Lieutenant Lowell Duckett, President Black Police Caucus, Special Assistant to Washington, D.C. Police Chief

They have gun control in Cuba. They have universal health care in Cuba. So why do they want to come here? - Paul Harvey, 1994

Suppose the Second amendment said A well-educated electorate being necessary for self-governance in a free state, the right of the people to keep and read books shall not be infringed. Is there anyone who would suggest that means only registered voters have a right to read? - Robert Levy, Georgetown University Professor

We should not blame a gun itself for any crime or any acts of violence, any more than we can blame a pen for misspelling a word. - Senator Bennett (R-UT), Congressional Record, 5/16/68

When governments fear the people, there is liberty. When the people fear the government, there is tyranny. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. - Thomas Jefferson (1743-1826), US Founding Father, drafted the Declaration of Independence, 3rd US President of the United States

PRO GUN CONTROL QUOTES

For target shooting, that's okay. Get a license and go to the range. For defense of the home, that's why we have police departments.- James Brady

The most effective means of fighting crime in the United States is to outlaw the possession of any type of firearm by the civilian populace.- Janet Reno

We need to stand firm on behalf of sensible gun control legislation. We have to enact laws that will keep guns out of the hand of children and criminals and mentally unbalanced persons.- Hillary Clinton

Without stronger, sensible gun laws, thousands upon thousands of people will continue to die and be injured needlessly each year.- Brady Campaign

We don't need any additional gun laws, we need to enforce the ones that we've got!- Anonymous

One third of all households with children younger than eighteen have a firearm-Brady Campaign

If I could have gotten 51 votes in the Senate of the United States for an out-right ban, picking up every one of them... 'Mr. and Mrs. America, turn 'em all in,' I would have done it. I could not do that. The votes weren't here.-Senator Dianne Feinstein

This year will go down in history. For the first time, a civilized nation has full gun registration. Our streets will be safer, our police more efficient, and the world will follow our lead into the future!- Adolph Hitler